United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-2429

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United States of America, *

*

Appellee, * Appeal from the United States 

* District Court for the Western

v. * District of Missouri.

*

Ricky Carter, * [UNPUBLISHED]

*

Appellant. *

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Submitted: November 16, 1999

Filed: November 23, 1999

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Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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PER CURIAM.

Following a bench trial, a district court convicted Ricky Carter of growing

marijuana with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) and of

maintaining a place for the purpose of growing marijuana in violation of 21 U.S.C. §

856(a)(1). Carter appeals, challenging the sufficiency of the evidence and the

admission of testimony about the effect of broad leaf herbicide on marijuana. We

affirm.
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Carter's father rented three adjoining fields for farming. The smallest field was

surrounded by timber and could not be seen from adjacent roads. Carter lived alone

in a house owned by his family next to the rented land. In the spring of 1998, Carter's

father hired a neighbor to plant a corn crop in the fields. Carter's father also hired a

company to apply fertilizer and a broad leaf herbicide. The company had employed

Carter for several years. Carter applied the broad leaf herbicide with a spray truck, and

a coworker applied granular treatments with a different truck. Carter's coworker saw

Carter enter the small field with the truck and heard him spraying, but could not see

him. Carter had enough spray to cover all three fields and used all of it. 

Carter's father generally went to the rented land every day, but did not visually

inspect the small field surrounded by timber. He checked the entire crop's progress by

looking at the visible adjoining fields. Carter would occasionally help his father tend

the crop. In August 1998, drug agents flying over the farmland in a helicopter spied

marijuana growing in the small field. On closer inspection, they found over 3000

tended female marijuana plants from six to eight feet tall in the midst of the small

cornfield. The plants had been recently fertilized and started from seeds in the field

rather than transplanted. They had been growing about two months, and were worth

over $3 million. Although the adjoining fields had a healthy corn crop and were weedfree, the small field was full of weeds and the corn was not as tall. The corn was

pushed down in several areas to provide the marijuana plants with more space and

sunlight. None of the neighbors had seen anyone entering the field or any unusual

activity on the roads next to the field. 

When officers questioned Carter about the marijuana, he denied any knowledge

of it, but suggested the officers speak with a man who had come by in a blue Tempo

two months earlier and asked permission to walk on the land to scout places for deer

stands. The blue Tempo was parked on Carter's property, and when officers inspected

it, they found a bill of sale showing it had been purchased just three weeks before then.

A search of Carter's home and property revealed no evidence of drug activity. 
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Carter contends this evidence is insufficient to convict him. We must decide

whether, viewing the evidence in the light most favorable to the guilty verdict, a

reasonable factfinder could find beyond reasonable doubt Carter grew the marijuana

and maintained a place for growing the marijuana. See United States v. Howell, 31

F.3d 740, 741 (8th Cir. 1994) (per curiam). The critical issue is whether the evidence

showed Carter had constructive possession and control of the marijuana growing in the

small cornfield leased by his father. See id. There was no direct evidence against

Carter in this case, so we must consider the permissible inferences that may be drawn

from the circumstantial evidence.

At trial, a government marijuana cultivation specialist testified, among other

things, that broadleaf herbicide kills marijuana. Carter asserts this testimony was

beyond the scope of the specialist's expertise. We conclude the district court did not

abuse its discretion in permitting the testimony, which was based on the specialist's

experience and training. See Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir. 1990)

(standard of review); Fed. R. Evid. 702. Given the testimony, and other testimony

about the weedy condition of the small field in comparison to the other two weed-free

fields, the district court could infer Carter purposefully did not spray the small field to

promote marijuana growth. Carter was also familiar with the field's isolation, and had

access to the field across his family's property. He knew his father leased the field and

probably would not check the field. Carter also attempted to divert attention to a

mysterious stranger with a dubious explanation. The Government's case was not

particularly strong, but we cannot say it was insufficient as a matter of law. See

Howell, 31 F.3d at 741 (conviction under §§ 841(a)(1) and 856(a)(1) supported by

evidence that defendant avoided marijuana plants when applying herbicide, evidence

the plants had been started indoors, and indoor grow equipment found in defendant's

attic).

We thus affirm Carter's conviction.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.